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Fisher v. Angelozzi

Court of Appeals of Oregon

May 17, 2017

JESSE DANIEL FISHER, Petitioner-Appellant,
v.
Rick ANGELOZZI, Superintendent, Deer Ridge Correctional Institution, Defendant-Respondent.

          Argued and Submitted November 10, 2015

         Jefferson County Circuit Court 11CV0050 Rick J. McCormick, Senior Judge.

Ryan T. O'Connor argued the cause for appellant. With him on the briefs was O'Connor Weber LLP.

          Dustin E. Buehler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and James Aaron, Assistant Attorney General.

          Before Sercombe, Presiding Judge, and Ortega, Judge, and Tookey, Judge. [*]

         Reversed and remanded for further proceedings on petitioner's Brady claim and petitioner's claim for ineffective assistance of counsel based on counsel's failure to investigate the arrest of Schmit; otherwise affirmed.

         Case Summary: Petitioner appeals a judgment denying his petition for post-conviction relief, assigning error to the denial of his Brady violation claim and the denial of his claim for ineffective assistance of trial counsel based on counsel's failure to investigate petitioner's theory of defense. He also asserts that the court's judgment failed to comply with ORS 138.640(1) because it does not make the legal bases for the denial of relief apparent as to each claim. Petitioner, who pleaded guilty to several crimes, including two counts of identity theft, asserted in his petition for post-conviction relief that the state violated Brady v. Maryland when it failed to turn over an exculpatory police report that it had in its possession. Petitioner also claimed that trial counsel did not adequately investigate his theory that another person had stolen petitioner's car and left stolen identity documents in the car that were discovered by police after petitioner had recovered the car. The post-conviction court denied petitioner's Brady violation claim because the court concluded that there was no "prosecutorial misconduct." The court also denied petitioner's ineffective assistance claim. Held: A Brady violation claim does not require proof of "prosecutorial misconduct"; therefore, the post-conviction court committed legal error by denying petitioner's claim on that basis. As to petitioner's ineffective assistance of counsel claim, the court's judgment, including oral findings that were incorporated into the judgment, violated ORS 138.640(1) because the judgment failed to "make the legal bases for denial of relief apparent."

          ORTEGA, J.

         Petitioner sought post-conviction relief with respect to several convictions entered after a guilty plea. In his petition, he raised several claims that he was denied his right to adequate and effective assistance of trial and appellate counsel under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution.[1] He also brought a claim that the state's failure to disclose an exculpatory police report violated his federal due process rights as recognized by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the close of the post-conviction trial, the court announced on the record that petitioner's Brady violation claim failed because there was no "prosecutorial misconduct." The court also announced several reasons for denying petitioner's ineffective assistance claims and entered a judgment denying all of petitioner's claims, which incorporated by reference the court's findings and conclusions "announced on [the] record."

         On appeal, in his first assignment of error, petitioner challenges the denial of his Brady violation claim, and, in his second assignment of error, he challenges the court's denial of his claim for ineffective assistance of trial counsel based on counsel's failure to investigate petitioner's theory of defense. In a third assignment of error, he argues that the court's judgment does not make the legal bases for the denial of relief apparent as to each claim, which is a violation of ORS 138.640(1), as construed in Datt v. Hill. 347 Or 672, 685, 227 P.3d 714 (2010) (to satisfy ORS 138.640(1), a post-conviction judgment denying relief must, among other things, "make the legal bases for denial of relief apparent").[2]

         Defendant does not defend the post-conviction court's conclusion that petitioner's Brady violation claim failed because there was no "prosecutorial misconduct." Instead, defendant advances two alternative bases to affirm the denial of the Brady violation claim, which we discuss in more detail later in the opinion. See Outdoor Media Dimensions Inc. v. State of Oreson. 331 Or 634, 659-60, 20 P.3d 180 (2001) (explaining when an appellate court can affirm the lower court's ruling under the "right for the wrong reason" principle). As for petitioner's ineffective assistance claim, defendant asserts that the court correctly determined that trial counsel reasonably decided not to conduct further investigation into petitioner's defense theory. Finally, defendant responds to petitioner's claim that the judgment fails to comply with ORS 138.640(1), by maintaining that the reference in the court's written judgment to the court's oral findings and conclusions is sufficient to satisfy the requirements announced in Datt.

         We conclude that the post-conviction court committed legal error by concluding that prosecutorial misconduct is required to sustain a Brady violation claim. We also decline to affirm based on defendant's alternative bases for affirmance. As for petitioner's ineffective assistance of counsel claim, the post-conviction court's judgment does not satisfy ORS 138.640(1), as construed in Datt. Moreover, the deficiencies in the judgment as to that claim obscure the basis of the post-conviction court's denial of relief and, given that we must remand for entry of a judgment that satisfies the Datt requirements as to that claim, we decline to address the merits of petitioner's second assignment of error. Accordingly, we reverse and remand for further proceedings on petitioner's Brady violation claim and petitioner's claim for ineffective assistance of counsel based on counsel's failure to investigate petitioner's theory of defense.

         We review post-conviction proceedings for errors of law, and we are bound by the factual findings of the postconviction court if any evidence in the record supports those findings. Montez v. Czerniak. 355 Or 1, 8, 322 P.3d 487, adh'd to as modified on recons. 355 Or 598, 330 P.3d 595 (2014). "If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistent with the post-conviction court's conclusions of law." Id. However, "[i]f an implicit factual finding is not necessary to a trial court's ultimate conclusion or is not supported by the record, then the presumption does not apply." Pereida-Alba v. Coursey. 356 Or 654, 671, 342 P.3d 70 (2015). We state the relevant facts consistently with that standard.

         In September 2010, police officers found petitioner passed out in his car, possibly under the influence of intoxicants. Petitioner, who was on probation for two prior convictions, attempted to flee when the officers made contact with him. After a struggle, the officers arrested petitioner and searched him and his car. Police found identification for a person named Ladley in petitioner's wallet, and police dispatch confirmed that Ladley had been the victim of a recent burglary. The search of petitioner's car revealed stolen property belonging to Ladley (including credit cards), drugs, drug paraphernalia, and burglary tools.

         About a week later, police again contacted petitioner following a report of a suspicious person in a car; he again resisted being taken into custody and was eventually handcuffed after a struggle. An inventory search of petitioner's car resulted in the discovery of drugs, drug paraphernalia, and stolen property, ...


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